Federal court deals blow to anti-Shariah efforts

Dawud Walid, executive director of the Michigan Chapter of Council on American-Islamic Relations prays in Foley Square in New York on Nov. 18. Walid was part of a rally against heavy-handed surveillance of the New York, New Jersey and Pennsylvania Muslim communities by police and the CIA. Profiling by law enforcers is just one facet of a civil rights battle being waged by American Muslims.

In a decision that Muslim legal advocates celebrated as a major win, a federal appeals court on Tuesday agreed with a lower court that blocked an Oklahoma law that would have barred state courts from considering or using Shariah law — the Islamic code of conduct.

The law would likely dampen similar legislation proposed in at least 20 U.S. states over the last couple of years, said Noah Feldman, professor of law at Harvard University.

The decision "should have a good, positive, desirable chilling effect," said Feldman. “It should tell people in those jurisdictions that (similar laws) almost all will be judged unconstitutional.”

In the November 2010 election, Oklahomans voted overwhelmingly for referendum SQ 755 — described by its author, Rep. Rex Duncan, as "a preemptive strike against Sharia Law coming to Oklahoma."

The amendment stated that: “The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law."

Muslim challenged lawA lawsuit filed two days after the election by Oklahoma resident Muneer Awad, a Muslim, charged that the law violated his First Amendment rights. In addition to stigmatizing him and other Muslims, Awad argued, the amendment would invalidate his last will and testament, which made reference to Islamic writings.

A federal judge in Oklahoma agreed that the amendment was most likely unconstitutional and granted a permanent injunction preventing its implementation until a final determination could be made.

On Tuesday, a judge for the 10th U.S. Circuit Court of Appeals in Denver, Colo., agreed with the lower court and upheld the injunction — rejecting an appeal by the state of Oklahoma.

"Because the amendment discriminates among religions, it is 'suspect,'" the higher court ruled, "and 'we apply strict scrutiny in adjudging its constitutionality.'"

The case returns to Oklahoma for a final determination, but the circuit court decision was met with enthusiasm by Muslim civil rights advocates.

"The decision today is an extremely strong signal that the Oklahoma anti-Muslim amendment will be stricken," said Gadeir Abbas, staff attorney for the Council on American Islamic Relations, who wrote the lawsuit.

“It’s not as if the 10th circuit is a bastion of left-wing activism,” he said. “This is coming from a very conservative court … It is unequivocal that there are really serious, very clear violations of the constitution that this amendment poses.”

Problem doesn't exist, lawyer saysAlthough Islam’s detractors suggest that "creeping sharia," left unchecked, will undermine U.S. freedoms, Feldman says that these laws play on fears of a problem that does not exist.

"The Constitution of the United States, and the constitution of every state -- that is 51 constitutions -- already make it illegal to implement Islamic law,” said Feldman. “Just as Jewish law can’t be the law of the United States, and canon law can’t be the law of the United States, shariah law can’t be the law of the United States."

"It’s like a law that says we absolutely ban alligators on the South Pole," he said.

On one hand, the court can consider the Islamic passage referred to by plaintiff Awad in his last will and testament, as a means of ascertaining his wishes.

On the other hand, if his wishes somehow run afoul of U.S. laws — regardless of his personal wishes — then the court will rule them a violation of law.

The final disposition of the case remains uncertain, but this decision strongly suggests the Oklahoma law ultimately will be defeated.

Most lawyers will see the 10th Circuit Court ruling as a "dog bites man story, not the other way around" Feldman said, showing that "the constitution works the way it is supposed to."